STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DWIGHT D DURY, Employee

NERCON ENG & MFG INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02404003GB


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked two years as a second shift assembler for the employer, a designer and manufacturer of conveyor systems. His last day of work was October 4, 2002 (week 40).

The issue is whether the employee's quitting was for any reason which would permit the payment of benefits.

The employee believed he could perform his job more efficiently using the larger array of personal tools he brought to work with him than he could using the tools required or provided by the employer.

The tools required by the employer fit in a toolbox which can be secured in an employee's locker.

The employee's personal toolbox would not fit in his locker so he took it back and forth to work with him each day. The employee had originally left his toolbox unsecured as most of the other employees still did, but had stopped doing so after it had been stolen from the work site and he had replaced all the tools at his own expense.

The employer required that a supervisor inspect his toolbox every time he removed it from the employer's premises, and the employee never expressed an objection to this practice.

On October 4, the employee was informed by Wayne Matella, his immediate supervisor, that he could no longer take his toolbox home with him every day. The employee asked his supervisor if this same requirement applied to co-worker Vaughn and Matella indicated it did not.

The employee was offered the option of keeping his toolbox in an office, but declined since the office was not always locked.

The employee became very upset because of this new directive and quit his employment as a result. The employee did not ask to speak to a manager other than his immediate supervisor before quitting.

Wis. Stat. § 108.04(7) provides that an employee who quits his employment is ineligible for benefits until he requalifies, unless his quitting falls within a statutory exception. The only exception which could arguably apply here is set forth in Wis. Stat. § 108.04(7)(b), which provides for payment of benefits if an employee quits with "good cause attributable to the employing unit." The Supreme Court has defined "good cause attributable to an employer" to mean some act or omission that justifies the employee's decision to become unemployed rather than to continue working, and has required that it must involve some fault on the part of the employer and be "real and substantial." Nottleson v. ILHR Department, 94 Wis. 2d 106, 120 (1980). In addition, the employee's decision to quit must be a reasonable reaction by the employee to this act on the part of the employer. Stetz v. DILHR, et al., Dane County Circuit Court, Case No. 136-215 (February 13, 1973). A necessary corollary to these considerations is that, before good cause can be shown, the employee must establish that he explored alternatives short of quitting in order to give the employer an opportunity to address and resolve those matters that the employee finds so serious that he is considering terminating his employment because of them. See, e.g., Roth v. LIRC & Wisconsin Youth Co. Inc., Case No. 02-CV-00409 (Milw. Co. Cir. Ct. Aug. 5, 2002); Collier v. Rubbermaid & Co., UI Hearing No. 99604071RC (LIRC Oct. 14, 1999). If the employee notifies the employer of such concerns, and the employer fails to take reasonable and necessary steps to address the employee's concerns, good cause attributable to the employer will be found. See, e.g., Opportunities Industrialization Center of Greater Milwaukee Inc. v. Barbara Dates & LIRC, Case No. 00-CV-7743 (Milw. Co. Cir. Ct. Mar. 20, 2001); Lichtfuss v. Bemis Specialty Films, UI Hearing No. 98402102AP (LIRC July 30, 1999).

The employee, who has the burden of proof here, failed to show that the directive that he leave his toolbox at work was a "real and substantial" action by the employer that justified his decision to become unemployed rather than to continue working, that his quitting was a reasonable reaction to this directive, and that he adequately explored alternatives to quitting with the employer. The employee chose to bring an array of tools to work which were not required by the employer, and the toolbox needed to accommodate this array of tools was so large that it could not be secured in the locker provided by the employer. The employee, rather than reducing the number of tools he had at work so that they could fit in his locker, or discussing with the employer why he needed the larger of array of tools in order to do his job and exploring what other options existed to secure them, decided to quit. The commission concludes that this quitting was not with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b).

The commission therefore concludes that, in week 43 of 2002, the employee quit his employment with the employer, but not with good cause attributable thereto or for any other reason constituting an exception to the quit disqualification of Wis. Stat. § 108.04(7)(a).

The commission further finds that the employee was paid benefits in the amount of $5424 for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1), and that waiver of this overpayment is not merited since the initial award of benefits was not based on department error but instead on a differing interpretation of the applicable law.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 40 of 2002 and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. He is required to repay the sum of $5424 to the Unemployment Reserve Fund.

Dated and mailed July 10, 2003
durydwi . urr : 115 : 1    VL 1005.01  VL 1080.05 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission did not consult with the administrative law judge because the reversal here results from a different view of the law rather than a different credibility determination.


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uploaded 2003/07/14